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Tankersley Exit Interview Part 2: No rules, no order

Bill Britt

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By Bill Britt
Alabama Political Reporter

“Our State needs so much help. There is such a lack of confidence in our elected leaders. The Ethics Commission can help restore that lost confidence,” said Dr. Stewart Hill Tankersley in a recent interview with the Alabama Political Reporter.

Tankersley Exit Interview Part 1: Success, collusion, and dismay

While he sees the Ethics Commission’s Executive Director, Tom Albritton, as a champion for a more efficient organization, he worries that the Commission could undercut Albritton’s determination to run an honest shop.

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“There are so many problems on the top end that I hope Tom is not undercut by Commissioners,” Tankersley said.

While acknowledging the Commission’s lack of mission-focus and its unwillingness to adopt rules governing its members, Tankersley remains hopeful and offered some suggestions on how the Commission should move forward.

“I don’t think like a lawyer,” Tankersley said. “As a Medical Corps Physician, we have a mission, which is ‘Preserve the fighting force.'”

He said it is important for every organization to have a “go-to phrase” or perspective, so people understand where they are coming from. In this case, he said, “the Ethics Commission’s assignment is to ‘protect you from you.'”

Tankersley, a history buff, found the phrase in a story from World War II about an American Sergeant’s conversation with a German prisoner of war: “The German officer asked the sergeant, ‘Why didn’t you join us? We could have taken over the world.’ The American sergeant replied, ‘You don’t understand, we are here to protect you from you.'”

He says the Commission is not in the “gotcha” business; rather, it is there to protect people from making the kinds of ethical mistakes that can harm them as well as the State.

“Christ continued taking to task the Scribes and the Pharisees who interpreted the laws to their benefit. He didn’t do it for his benefit but for theirs,” said Tankskersley, a devout Christian.

Tankersley has witnessed things over the last several years that have shocked and baffled him, but he believes that Albritton and his staff are on the right path.

“The Commission,” Tankersley said, ‘[must] act as a guardrail to keep public officials from going over the edge into a ravine. … As a commission, we can’t skirt around the issues.”

But, as he points out, “the Commission doesn’t even follow Robert’s Rules of Order, the most widely used manual of Parliamentary procedure in the United States. “This has allowed the chairman [Judge Jerry Fielding] to vote to create a tie,” Tankersley said with dismay.

He is also concerned that the Commission has no formal rules on recusal.

“Judges have a formal rule for recusal, but we don’t,” Tankersley said.

This was on full display during the Ethics hearing over allegations against former Gov. Robert Bentley, which ultimately led to his resigning from office. During the nine hour hearing in April, Commissioner Butch Ellis, a Bentley appointee, sat through the entire nine-hours, hearing and aggressively questioning witnesses in closed session, only to recuse before the Commission was about to vote on the Bentley matter.

Commissioner Judge Charles Price, another Bentley appointee, voted no on the issue of Bentley using his position for personal gain. Both men wanted the complaint against Bentley to be forwarded to the Montgomery District Attorney’s Office even though the State’s Attorney General had an open and active investigation.

Behind the scenes of the Bentley resignation

Operating in an environment without a formal procedure, where the Commissioners are not bound by the Ethics Laws they are charged with enforcing, exacerbates Tankersley’s concerns, who hopes the Legislature will step-in to clarify these and other matters.

However, it is unlikely, given the current political climate where the State’s appointed Attorney General refused to bring a long-planned ethics bill to the State House.

Attorney General Steve Marshall, appointed by Bentley, failed to follow through on his office’s commitment to “strengthen and clarify” existing laws. There are high hopes that Gov. Kay Ivey, who recently banned lobbyists from serving on State Boards and Commissions, will sponsor the ethics legislation originally drafted by former Attorney General Chief Deputy Alice Martin, Matt Hart, and agreed upon by House Speaker Mac McCutcheon, Senate President Pro Tem Del Marsh, and other stakeholders.

The general belief is that Marshall, who is raising money from PACs opposed to ethics reforms, backed away from supporting the new ethics package for fear of alienating deep-pocketed donors.

The Commission lacks defined rules and has, on occasion, ignored the laws they swore to uphold. Perhaps the most egregious example involved a State Representative who accepted a job with a non-profit for which one of her major duties was to lobby fellow lawmakers.

The trouble began in April 2015, when State Representative Patricia Todd (D-Birmingham) was named State Director of the Human Rights Campaign (HRC). According to its website, The Human Rights Campaign is America’s largest organization working to achieve lesbian, gay, bisexual and transgender equality.

Todd, a lesbian, is the State’s lone, publicly “out” lawmaker.

She is highly regarded, not only for her stand on LGBT issues but for her willingness to work across the aisle to find bipartisan solutions to the State’s inequities. Todd, during this period, enjoyed a warm relationship with former Speaker of the House Mike Hubbard, who would later be convicted of 12 felony counts of public corruption.

Among Hubbard’s convictions was lobbying while holding elected office.

Before taking the job at HRC, Todd didn’t request a formal opinion from the State Ethics Commission, something she would later do with encouragement from Hubbard.

Rep. Patricia Todd Named State Director for Alabama HRC

On August 5, 2015, the Ethics Commission issued Opinion No. 2015-14, which, according to Attorney General’s Office and the State’s DA, “practically permits an interest group (HRC Alabama) to pay a Legislator (Todd) to lobby the Legislature and State and Local governments, we find the Ethics Commission’s legal analysis to be fatally flawed.”

The opinion was shepherded through the process by Edward A. “Ted” Hosp, an attorney with Maynard Cooper Gayle and, at the time, a registered lobbyist for HRC Alabama. Hosp has regularly appeared before the Commission in opinions that could upend State Ethics Laws.

Tankersley recalls a few occasions where he and Hosp had some rough dealings but declined to comment publicly on what the issues were about.

In the Todd opinion, Tankersley was the single dissenting vote.

“I couldn’t understand how can a Legislator could be allowed to lobby?” said Tankersley. “When it came before the commission, I requested her job description from the group. … It clearly said she would be lobbying for the group.”

He said other commissioners argued to allow the exception because HRC was a non-profit. However, as Tankersley points out, the law doesn’t mention any exception for non-profit groups.

“I’d never seen anything like it,” Tankersley said. “Very unusual.”

Attorney General and State DAs Challenge Todd Opinion

Hubbard included the Todd Opinion in a pre-trial motion to support his argument that legislators should be allowed to serve as lobbyists.

Hubbard Motion To Dismiss Unsealed: Claims Right To Lobby

The opinion was reversed due to pressure from the Attorney General’s Office and serves as a reminder that some commissioners stray broadly from the black letter of the law.

Despite having no real code of behavior, enforced rules of order or a willingness by commissioners to ignore the laws, Tankersley remains determined to see the Commission succeed by exposing its weaknesses.

Tankersley suggests the Commission adopt Robert’s Rules of Order, the Legislature add commissioners to those who fall under the Ethics Laws and the Commission live by the same Canons of Judicial Ethics as State Judges.

According to former Ethics Commission Executive Director Jim Sumner commissioners are held to the same laws as other public officials under Section 36-25-3 which states, “(e) All members, officers, agents, attorneys, and employees of the commission shall be subject to this chapter. The director, members of the commission, and all employees of the commission may not engage in partisan political activity, including the making of campaign contributions, on the state, county, and local levels. The prohibition shall in no way act to limit or restrict such persons’ ability to vote in any election.”


The next article will focus on opinions before the Commission that would once again try to undermine the Ethics Code as written.

 

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House passes General Fund Budget

Brandon Moseley

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By Brandon Moseley
Alabama Political Reporter

The Alabama House of Representatives passed the state General Fund Budget on Tuesday.

The General Fund Budget for the 2019 fiscal year is Senate Bill 178. It is sponsored by Sen. Trip Pittman, R-Montrose. State Rep. Steve Clouse, R-Ozark, carried the budget on the House floor. Clouse chairs the House Ways and Means General Fund Committee.

Clouse said, “Last year we monetized the BP settlement money and held over $97 million to this year.”

Clouse said that the state is still trying to come up with a solution to the federal lawsuit over the state prisons. The Governor’s Office has made some progress after she took over from Gov. Robert Bentley. The supplemental we just passed added $30 million to prisons.

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The budget adds $50 million to the Department of Corrections.

Clouse said that the budget increased the money for prisons by $55,680,000 and includes $4.8 million to buy the privately-owned prison facility in Perry County.

Clouse said that the budget raises funding for the judicial system and raises the appropriation for the Forensic Sciences to $11.7 million.

The House passed a committee substitute so the Senate is either going to have to concur with the changes made by the House or a conference committee will have to be appointed. Clouse told reporters that he hoped that it did not have to go to conference.

Clouse said that the budget had added $860,000 to hire more Juvenile Probation Officers. After talking to officials with the court system that was cut in half in the amendment. The amendment also includes some wording the arbiters in the court lawsuit think we need.

The state General Fund Budget, SB178, passed 98-1.

Both budgets have now passed the Alabama House of Representatives.

The 2019 fiscal year begins on Oct. 1, 2018.

In addition to the SGF, the House also passed a supplemental appropriation for the current 2018 budget year. SB175 is also sponsored by Pittman and was carried by Clouse on the floor of the House.

SB175 includes $30 million in additional 2018 money for the Department of Corrections. The Departmental Emergency Fund, the Examiners of Public Accounts, the Insurance Department and Forensic Sciences received additional money.

Clouse said, “We knew dealing with the federal lawsuit was going to be expensive. We are adding $80 million to the Department of Corrections.”

State Representative Johnny Mack Morrow, R-Red Bay, said that state Department of Forensics was cut from $14 million to $9 million. “Why are we adding money for DA and courts if we don’t have money for forensics to provide evidence? if there is any agency in law enforcement or the court system that should be funded it is Forensics.”

The supplemental 2018 appropriation passed 80 to 1.

The House also passed SB203. It was sponsored by Pittman and was carried in the House by State Rep. Ken Johnson, R-Moulton. It raises securities and registration fees for agents and investment advisors. It increases the filing fees for certain management investment companies. Johnson said that those fees had not been adjusted since 2009.

The House also passed SB176, which is an annual appropriation for the Coalition Against Domestic Violence. The bill requires that the agency have an operations plan, audited financial statement, and quarterly and end of year reports. SB176 is sponsored by Pittman and was carried on the House floor by State Rep. Elaine Beech, D-Chatham.

The House passed Senate Bill 185 which gives state employees a cost of living increase in the 2019 budget beginning on October 1. It was sponsored by Sen. Clyde Chambliss, R-Prattville and was being carried on the House floor by state Rep. Dimitri Polizos, R-Montgomery.

Polizos said that this was the first raise for non-education state employees in nine years. It is a 3 percent raise.

SB185 passed 101-0.

Senate Bill 215 gives retired state employees a one time bonus check. SB215 is sponsored by Senator Gerald Dial, R-Lineville, and was carried on the House floor by state Rep. Kerry Rich, R-Guntersville.

Rich said that retired employees will get a bonus $1  for every month that they worked for the state. For employees who retired with 25 years of service that will be a $300 one time bonus. A 20-year retiree would get $240 and a 35-year employee would get $420.

SB215 passed the House 87-0.

The House passed Senate Bill 231, which is the appropriation bill increase amount to the Emergency Forest Fire and Insect and Disease Fund. SB231 is sponsored by Sen. Steve Livingston, R-Scottsboro, and was carried on the House floor by state Rep. Kyle South, R-Fayette.

State Rep. Elaine Beech, D-Chathom, said, “Thank you for bringing this bill my district is full of trees and you never know when a forest fire will hit.

SB231 passed 87-2.

The state of Alabama is unique among the states in that most of the money is earmarked for specific purposes allowing the Legislature little year-to-year flexibility in moving funds around.

The SGF includes appropriations for the Alabama Medicaid Agency, the courts, the Alabama Law Enforcement Agency, the Alabama Department of Corrections, mental health, and most state agencies that are no education related. The Alabama Department of Transportation gets their funding mostly from state fuel taxes.

The Legislature also gives ALEA a portion of the gas taxes. K-12 education, the two year college system, and all the universities get their state support from the education trust fund (ETF) budget. There are also billions of dollars in revenue that are earmarked for a variety of purposes that does not show up in the SGF or ETF budgets.

Examples of that include the Public Service Commission, which collects utility taxes from the industries that it regulates. The PSC is supported entirely by its own revenue streams and contributes $13 million to the SGF. The Secretary of State’s Office is entirely funded by its corporate filing and other fees and gets no SGF appropriation.

Clouse warned reporters that part of the reason this budget had so much money was due to the BP oil spill settlement that provided money for the 2018 budget and $97 million for the 2019 budget. Clouse said they elected to make a $13 million repayment to the Alabama Trust fund that was not due until 2020 but that is all that was held over for 2020.

Clouse predicted that the Legislature will have to make some hard decisions about revenue in next year’s session.

 

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Day Care bill delayed for second time on Senate floor, may be back Thursday

Sam Mattison

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By Samuel Mattison
Alabama Political Reporter

The day care bill, which would license certain day care centers in Alabama, was once again delayed on the state Senate floor after one lawmaker requested more information.

Its brief appearance Tuesday ended with state Sen. Gerald Dial, R-Lineville, saying a compromise had not yet been worked out with the bill’s detractors.

Alabama’s Senate has been hesitant to act on the legislation because of complaints of state Sen. Shay Shelnutt, R-Trussville, who has been an opponent of the bill since its introduction last year. The bill’s delay on Tuesday marks the second time its been taken off the Senate’s agenda.

The bill has had a rocky time in this year’s session, but the bill’s sponsor state Rep. Pebblin Warren, D-Tuskegee, said she is still confident about its passage out of the Legislature.

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Warren, D-Tuskegee, filed the bill this session with the support of influential lawmakers including Gov. Kay Ivey, who told reporters last year that she though all day cares should be licensed.

Mainly sparked by the death of 5-year-old boy in the care of a unlicensed day care worker, the bill had great momentum coming into this year’ session.

Despite the growing support from lawmakers, Religious groups had concerns that the bill would increase state-sponsored reach into religious day cares in churches and non-profit groups.

Spearheading the dissenters was Alabama Citizens Action Program, a conservative religious-based PAC.

Warren, proponents, and ALCAP announced a compromise to the bill while it was still in the Alabama House.

Announced by ALCAP originally, the new bill was a weaker version in that it did not require that all day cares in the state be regulated. Instead, religious-based day cares would only need to be registered if they received federal funds. At a Senate committee meeting in February, Warren said a similar requirement was about to come from federal law in Congress.

The bill moved through the House in a overwhelming vote in favor of the proposal and passed unanimously out of a Senate committee a few weeks ago.

Warren, speaking to reporters after its passage from the House, said she was unsure if the bill would encounter resistance in the upper chamber.

It was the Senate that killed the daycare bill last year amid a cramped last day where senators took the bill off the floor. The bill may face similar complications this year, as lawmakers seem to be preparing to adjourn within a few weeks.

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In Case You Missed It

Fantasy sports bill fails on Senate floor

Sam Mattison

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By Samuel Mattison
Alabama Political Reporter

Would-be Fantasy Sports players in Alabama will have to wait to legally play in the state following a Senate vote on Tuesday.

The Alabama Senate decisively killed a bill to exempt fantasy sports from the state’s prohibition on gambling.

Not even entertaining a debate on the Senate floor, the proposal was killed during a vote for the Budget Isolation Resolution, which is usually a formality vote preluding a debate.

Fantasy sports are contests where participants select players from real teams to compete on fantasy teams using the real-world players’ stats.

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Since 2016, the practice has been illegal in Alabama following a legal decision by the Attorney General’s Office that categorized it as gambling.

The bill’s sponsor, state Sen. Paul Sanford, R-Huntsville, predicted the bill’s failure during a committee meeting two weeks ago, where the bill passed unanimously.

Sen. Paul Sanford speaks to reporters after a Senate Committee meeting on Feb. 28, 2018. (Samuel Mattison/APR)

Speaking to reporter’s after the committee meeting, Sanford said the decision to file the bill was mainly a philosophical belief that the practice shouldn’t be illegal.

Sanford, a fantasy sports player before its ban, said that fantasy sports are a way to bring people closer together and not a means to win money. The Huntsville senator is not seeking re-election.

The bill’s failure in the Senate follows its trajectory last year too. A similar version of the bill, also sponsored by Sanford, failed in the Senate during the final days of the 2017 Legislative Session.

Since Sanford is retiring, it is unclear if the bill will even come back next session, or if it will even have a Senate sponsor.

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Tankersley Exit Interview Part 2: No rules, no order

by Bill Britt Read Time: 7 min
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